When might does not create religious rights: for-profit corporations' employees and the contraceptive coverage mandate.

• Author: Benedict, Kathryn S.
• Position: II. Current Litigation B. The Religious Freedom Restoration Act through Conclusion, with footnotes, p. 89-122

2. The Religious Freedom Restoration Act

   All of the courts have addressed the for-profit plaintiffs' RFRA claim, diverging primarily between courts which have found no substantial burden and therefore no merit to the plaintiffs' claim, and those which have found a substantial burden as well as no clear compelling interest in applying the mandate to the plaintiffs and therefore have granted the plaintiffs' preliminary injunctive relief. Eleven district courts found that the plaintiffs had failed to prove a substantial burden under RFRA. (143) Five district courts, on the other hand, granted the plaintiffs a preliminary injunction after finding that the government had provided too many exemptions to the contraceptive coverage mandate for a compelling government interest to exist. (144) Lastly, three district courts granted the plaintiffs preliminary relief because the courts' uncertainty on the merits warranted maintaining the status quo. (145)

   The circuit courts have also differed: the Seventh, Eighth, Tenth, and District of Columbia Circuits granted two, two, three, and one preliminary injunctions each respectively, while the Third and Sixth Circuits, and Circuit Justice Sonia Sotomayor reviewing the Tenth Circuit's decision, denied one, two, and one each respectively. In two of its three decisions, the Tenth Circuit remanded to the district court for further consideration on two remaining preliminary injunction factors. (146) This section will focus on the courts' consistent points of tension.

   1. Substantial Burden

      The linchpin for the courts under the substantial burden prong is deciding what is the specific burden that the contraceptive coverage mandate imposes on a for-profit plaintiff's religious exercise, and whether the burden is a sufficiently direct imposition on an action rather than a belief to qualify as substantial. (147) The courts have most diverged over this prong, with the courts that have found a substantial burden subsequently finding that the contraceptive coverage mandate fails RFRA, while the courts that have found that there is no substantial burden necessarily finding that the mandate survives RFRA scrutiny.

      Eleven district courts, the first Third Circuit opinion, the Sixth Circuit, and the first Tenth Circuit opinion found that the contraceptive coverage mandate did not violate RFRA because there was no substantial burden on the corporate plaintiff. (148) This result followed from characterizing the burden complained of as being that "the funds, which plaintiffs will contribute to a group health plan, might, after a series of independent decisions by healthcare providers and [employees] covered by [the plaintiff]'s plan, subsidize someone else's participation in an activity that is condemned by plaintiff's religion." (149) None of these courts found anything in the regulations that required the plaintiffs to personally participate in the activity to which they objected, or to change their behavior, or to change their religious exercise. (150) One court analogized the plaintiff's argument to asking the court to find a burden because an employee spends her salary on something of which the employer does not approve; another emphasized that the choice to use contraceptives ultimately rested not with the corporation or its owners, but with the employees. (151) A third court found this situation to be comparable to the situation in Lee, stressing that both were concerned with the effect of the employer's religion on the employees. (152) The courts concluded that the contraceptive coverage mandate was "degrees removed" from imposing a burden on the corporation, even further removed from imposing one on the corporate owner who benefited from the corporate form, and that such a claim could not support a finding of substantial burden as required by RFRA. (153) This burden was too attenuated to be substantial.

      By contrast, the courts that have found that there is a substantial burden on the corporate plaintiffs have done so by accepting the plaintiff's characterization of that burden without independently scrutinizing the burden for substantiality. (154) For example, one district court stated that courts "often simply assume that a law substantially burdens a person's exercise of religion when that person so claims," before determining without analysis that the corporate plaintiff was "likely to show at trial" that the mandate constituted a substantial burden. (155) In a similar move, the Seventh Circuit found a substantial burden after accepting the plaintiff's explanation that the religious burden stemmed from the requirement that the plaintiffs provide coverage in the first place, not from the subsequent use of that contraception by the employees. (156) The court therefore found that the burden was direct, dividing from the Tenth Circuit in this characterization. (157) The Tenth Circuit initially agreed with the district court on appeal's finding that the burden was based on plaintiff's objections to their employees' actions, not on the plaintiff's purchase of health coverage. (158) The Tenth Circuit subsequently changed its interpretation of the burden, finding that "[o]ur only task is to determine whether the claimant's belief is sincere, and if so, whether the government has applied substantial pressure on the claimant to violate that belief," and clarifying that the question is only about "the coercion the claimant feels." (159) The court then found a substantial burden because the claimants indicated that the provision of health insurance alone was a burden and the court found that the cost of violating the mandate was prohibitive. (160) If other courts accept the provision of health insurance as itself a substantial burden on religious exercise, then the compelling interest prong rather than the substantial burden prong is likely to be the primary battleground for the contraceptive coverage mandate going forward.

   2. Compelling Interest

      There are two points of contention for the courts to address under the compelling interest prong: the first asks whether the government's interests in the contraceptive coverage mandate are compelling at all, the second focuses on the effect that the exemptions to the contraceptive coverage mandate have on the government's claim that their interests are compelling. Eight courts have addressed the compelling interest test under RFRA, and two of those courts spent the most time analyzing this part of the RFRA test. (161)

      The government has argued that the contraceptive coverage mandate supports two compelling interests. These interests are: (1) promoting public health, especially of women, newborn children, and developing fetuses, and (2) furthering gender equality by ensuring women's equal access to preventative health care thereby allowing women to participate equally in the workplace and in American life generally. (162) American Civil Liberties Union (ACLU) amicus briefs suggest a third compelling interest: an interest in eliminating gender discrimination against employees under the guise of religious exercise, an interest which outweighs any religious interest in not providing insurance coverage for contraceptive services to women. (163)

      Six of the courts to address the compelling interest prong recognized that the government's two interests could be compelling generally. (164) The one court to push back recognized that the government has an interest in women's health and prenatal health which can be aided by the ability to control pregnancy and pregnancy spacing, but was hesitant to acknowledge that the availability of oral contraceptives helped increase the presence of women in the workforce, noting only that this "appears" to be true "according to some researchers." (165) That court, however, noted that "plaintiffs do not contest that women of child-beating age spend significantly more than men on out-of-pocket health care costs"; accordingly, it was evident to the court that the laws relied upon by plaintiff as already covering the issue did not adequately address the government's goals. (166) In the end, all of the courts seemed prepared to find that the government's interests in using the contraceptive coverage mandate to address public health concerns and create gender equality are compelling in general.

      After finding that the interests are compelling in the abstract, a court must then find that the government's interests as applied to the for-profit plaintiffs are compelling even though the ACA and mandate provide other exemptions. Six courts found that the contraceptive coverage mandate provides too many exemptions to further a compelling interest when applied to the for-profit plaintiff. The "massive exemption" to the contraceptive mandate permitted for grandfathered plans, (167) small employers, (168) and religious employers (169) rendered the government's interest in applying the contraceptive coverage mandate to this particular plaintiff less than compelling because one more exemption would not greatly affect the efficacy of the government's program. (170)

      Another court disagreed, stating that gradual implementation is not indicative of the strength of the government's interests and that the grandfathering plan is a "reasonable plan for instituting an incredibly complex health care law while balancing competing interests." (171) That court stressed that finding otherwise would provide the government with perverse incentives to "require immediate and draconian enforcement" of similar laws in the future to preserve "compelling interest status." (172) The court also suggested that a court-ordered exemption for one plaintiff may only be a "miniscule hindrance," but that if "owners of other secular, for-profit companies" could qualify, then that could "undermine various interests the [g]overnment presently seeks to advance." (173)

      Courts have come to opposite conclusions about the effect of the exemptions on the compelling nature...